35 Pages Posted: 23 Jun 2017
Date Written: March 1, 2016
Notwithstanding the significant victories of the LGBT civil rights movement over the past 20 years, culminating in the declaration of full marriage equality in Obergefell v. Hodges, anti-LGBT sentiment generally, and anti-marriage-equality sentiment in particular, continue to run deep. One pocket of resistance is in some tribal communities. While Obergefell unequivocally resolved the problem of the “patchwork quilt” of marriage equality among the states, the problem of gaps in marriage equality among Tribal Nations has left the problem of the “patchwork quilt” intact. This article answers the question: What is the effect of federal marriage equality on the modern expression of tribal sovereignty through tribal governmental interactions with LGBT individuals and families? It addresses the gaps in marriage equality in Tribal Nations, analyzes the underlying reasons for the gaps, and describes three possible approaches for indigenizing equality — realizing marriage equality in all Tribal Nations.
Tribal sovereignty — the fundamental building block of Federal Indian Law — is at its apex when dealing with internal tribal relations, particularly issues touching on tribal families. Before Obergefell, tribes had the opportunity to exercise their sovereignty progressively by extending rights to tribal citizens unavailable to American citizens; most did not take this opportunity. Resistance and acceptance of marriage equality among tribal communities loosely tracks political orientation based on the underlying political views of the state in which the tribe is located. Thus, opposition to marriage equality is a product of continued colonization through the adoption of Western/American discriminatory biases. That colonization creates two simultaneous harms: the denial of rights to LGBT tribal citizens and the downplaying, if not complete erasure, of the deep and long-standing tribal tradition of recognizing and celebrating “two-spirit” people.
We believe that marriage equality will become the rule of law in all Indian Tribes, just as it has in the United States, in one of three ways: (1) through Congressional imposition, (2) through litigation and a resulting federal court mandate, or (3) through the recognition of marriage equality by the tribes themselves. We believe the third avenue — recognition of same-sex marriage by tribes themselves — is the ideal, and quickest, way of achieving marriage equality in Indian Country. This approach, which we label “indigenizing equality,” has the significant positive impact of enhancing tribal sovereignty through redoubling the concept that tribal communities are self-governing entities worthy of political and legal deference by the United States and the international community.
Keywords: LGBTQ, marriage equality, Obergefell, Federal Indian Law, tribal sovereignty
Suggested Citation: Suggested Citation
Pearl, M. Alexander and Velte, Kyle C., Indigenizing Equality (March 1, 2016). Yale Law & Policy Review, Vol. 35, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=2991058